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The court issued rulings in three cases today. Here is a brief summary of each case:

In Re the Honorable Judith Raub Eiler, No. 200,701-5. Judge Judith Eiler is a district court judge in King County. Based on a number of complaints, disciplinary proceedings were brought against her for treating litigants in an “angry, abusive, and condescending manner.” Eiler argues that there was not enough evidence, that the penalty is too high, and that punishing her for her demeanor violates her freedom of speech. Eiler appeals a disciplinary recommendation that she be suspended for 90 days without pay. The Supreme Court, with Justice Jim Johnson writing the lead opinion, found that Judge Eiler’s behavior only violated the judicial cannon requiring that a judge be “patient, dignified, and courteous.” The court reduced her suspension to a 5-day period.

Kelley v. Centennial Contractors, No. 82474-6. Phillip and Monica Blackshear sued Centennial Contractors Enterprises for injuries caused when a steel beam was dropped on Phillip. After they won the suit, they filed a complaint for loss of consortium on behalf of their three children. The complaint stated that it would have been impractical to include their claims with their parents’ suit. George Kelly was appointed guardian ad litem for the children. At trial, the children’s case was dismissed because the court said their claims should have been joined with their parents’ claims. The Court of Appeals (Div. 2) reversed, holding that since the children did not yet have a guardian ad litem it would have been impossible to join them to the suit, and that it would have been impractical for them to bring their claims until the results of their father’s surgery were known. The Supreme Court, with Justice Gerry Alexander writing the lead opinion, agreed, holding that there were general issues of material fact that precluded a summary dismissal of the claim.

State v. Tibbles, No. 80308-1. Micah Tibbles appealed his misdemeanor convictions for possession of marijuana and drug paraphernalia. During a traffic stop of Tibbles, Trooper Norman Larsen detected a strong odor of marijuana coming from Tibbles’ car. The trooper did not arrest Tibbles or seek a warrant, but conducted an warrantless search of the car, whereupon he discovered marijuana and drug paraphernalia. The district court, superior court, and Court of Appeals all upheld the search under the “exigent circumstances” exception to the warrant requirement, which allows law enforcement officers to conduct warrantless searches when obtaining a warrant is not practical because the delay would compromise officer safety, facilitate escape, or allow destruction of evidence. Justice Debra Stephens, writing for the Supreme Court, said that the exigent circumstances exception would not apply in this case and that the search of Tibbles’ vehicle was unconstitutional under article I, section 7 of the Washington Constitution.

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In an unanimous opinion written by Justice Debra Stephens, the Supreme Court has ruled against three death row inmates who sought to have the state's lethal injection protocol declared unconstitutional. The court declined to squarely address the constitutionality of the lethal injection procedure. From the opinion: 

This case began mainly as a constitutional challenge by three death row inmates . . . to Washington’s three-drug lethal injection protocol for carrying out a sentence of death. The Thurston County Superior Court dismissed some claims on summary judgment and held a five-day bench trial in May 2009 to consider whether the three-drug protocol violated the Eighth Amendment prohibition against “cruel and unusual punishment” or Washington’s constitutional ban on “cruel punishment” in article I, section 14. The trial court upheld the lethal injection protocol, and this appeal followed.

Before this court heard oral argument, however, the Washington Department of Corrections (Department) abandoned the three-drug method of execution and adopted a new, one-drug protocol, effective March 8, 2010. The Department now moves to dismiss the Appellants’ constitutional challenge as moot, leaving for review only claims concerning the legislative delegation of authority to the Department to develop a lethal injection protocol, and the Department’s handling of the lethal injection substances under state and federal law governing controlled substances. In addition, the Department cross-appeals the trial court’s refusal to dismiss this case as time barred.

For the reasons that follow we affirm the trial court, both as to the statute of limitations question and its dismissal of the claims concerning legislative delegation and the state and federal controlled substances acts. With respect to the Appellants’ constitutional challenge and related claims, we grant the Department’s motion to dismiss these claims as moot.

The Supreme Court has lifted its stay of execution entered in Cal Coburn Brown's case, which was entered the day before he was scheduled to be executed last year. We expect the Attorney General's Office will announce its plan to seek a rescheduling of the execution shortly.

The case is Brown, Gentry and Stenson v. Vail, No. 83474-1.

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Broom v. Morgan Stanley, No. 82311-1 (briefs and argument). The Supreme Court held that an arbitration panel erred by applying state statutes of limitations to bar the a claim. Michael, Kevin, and Andrea Broom sued Morgan Stanley DW, Inc. for mismanaging an investment account. Their claims were rejected by an arbitration panel because they were barred by the statute of limitations. The Brooms appealed to King County Superior Court, and the court held that statute of limitations in Washington do not apply to claims in arbitration. The court vacated the arbitration panel’s decision as an error of law. The Court of Appeals (Div. 1) affirmed. Morgan Stanley argues both that statutes of limitations do apply to arbitration, and that courts cannot vacate arbitration decisions because of “errors of law.” The Supreme Court, with Justice Charles Johnson writing, affirmed the Court of Appeals. Chief Justice Barbara Madsen dissented.

Little Mtn. Estates Tenants Ass’n v. Little Mtn. Estates MHC LLC, No. 82574-2 (briefs and argument). The Supreme Court held that under the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA), chapter 59.20 RCW, a landlord and tenant can lawfully agree to a 25-year lease that will convert to a one-year lease if the tenant assigns it. Mobile home tenants and association brought an action against the mobile home park, alleging that leases violated the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA) and the Consumer Protection Act (CPA). The trial court ruled for the park. Writing for the majority, Justice Richard Sanders said that the MHLTA preserves the right of a landlord and tenant to negotiate and agree to the term of a rental agreement and thus the provision does not violate the MHLTA. Justice Gerry Alexander wrote a dissenting opinion.

Sound Infiniti v. Snyder, No. 81923-8 (briefs and argument). Richard Snyder, David Hannah, and Afshin Pisheyar were joint owners (as shareholders) of Sound Infiniti and Infiniti of Tacoma. They had a falling out, and Pisheyar sued the others individually and on behalf of the corporation (a derivative suit). Snyder and Hannah set up a reverse stock split to take away all of Pisheyar's stocks. The trial court allowed the split to proceed after an initial injunction, and dismissed Pisheyar's derivative suit because he was no longer a shareholder. The Court of Appeals confirmed the ruling, and found that the sole remedy for all Pisheyar's claims is the appraisal process, in which he can obtain fair market value for the shares that were taken away. The Supreme Court agreed, with Justice Susan Owens writing the majority opinion. The court held: (1) that the appraisal proceeding in RCW 23B.13.020 is a dissenting shareholder’s exclusive remedy unless a corporate action is procedurally defective or fraudulent and (2) that a divested shareholder does not have standing in a derivative suit. Justice Sanders wrote a dissenting opinion.

State v. Harvill, No. 82358-8 (briefs and argument). At trial, Joshua Harvill claimed that he sold the drugs because he was afraid of the informer. The trial court refused to instruct the jury on the defense of duress because there was no evidence that the informer had threatened Harvill. The trial court did instruct the jury on the defense of entrapment, and the jury rejected the defense. The Supreme Court unanimously ruled that the trial court abused its discretion by refusing to instruct the jury on the duress defense. The court reversed the conviction and remanded for a new trial. Justice Debra Stephens wrote the opinion.

State v. Nonog, No. 82094-5 (briefs and argument). Cipriano Bahit Nonog was convicted in King County Superior Court of felony violation of a domestic violence protection order, residential burglary-domestic violence, and interfering with domestic violence reporting. Defendant appealed. The Court of Appeals (Div. I) upheld the conviction, and ruled that the information charging the defendant sufficiently defined the charges. The Supreme Court affirmed the decision below, with Justice Debra Stephens writing the unanimous opinion.

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In re Det. of Pouncy, No. 81769-3 (briefs and argument). Curtis Pouncy has a long incarceration history after several sexual assaults. In 2003 the state filed a petition to have Pouncy committed as a sexually violent predator. In order to establish an individual is an SVP, the state must prove the person “has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” Defense counsel proposed a jury instruction defining “personality disorder” but the trial court rejected the instruction and no other guidance defining “personality disorder” was offered the jury. The defendant also objected to the court’s decision to permit the state to attack the credibility of the defendant’s psychological expert.

The Supreme Court, with Justice Debra Stephens writing, held that the trial court erred by refusing to instruct the jury on the meaning of “personality disorder.” At the time of Pouncy’s trial, this phrase was not defined by statute, though the legislature later supplied a definition. The Court wrote that the phrase is not one of common usage and requires definition to ensure jurors are not forced to define the term based on their collective understanding.

The Court reversed Pouncy’s SVP determination and ordered a new commitment trial. The Court also held that the impeachment evidence the state introduced against the defendant’s expert witness was inadmissible and should not be used on retrial.

Chief Justice Barbara Madsen wrote separately, concurring with the Court’s order for retrial. She however, wrote that the inadmissibility of the impeachment evidence was enough to justify a new trial, and she disagreed with the Court’s analysis of the personality disorder issue.

UPDATE: Nina Shapiro at the Seattle Weekly has this article criticizing the Court's decision in Pouncy's case.

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The Supreme Court issued rulings in seven cases this morning, including two highly-anticipated decisions dealing with whether an authorization to use medical marijuana is a defense to criminal possession, and whether the state's Consumer Protection Act allows out-of-state litigants to join a Washington class action lawsuit.

Clayton v. Wilson, No. 81920-3. Justice Richard Sanders wrote the unanimous ruling holding that a couple’s marital community is liable for the intentional wrongful sexual acts of one spouse. Without his wife’s knowledge, Mr. Wilson repeatedly sexually abused a neighbor boy, Andrew Clayton, whom he was paying to do yard work at the Wilson’s home. After Mr. Wilson was arrested the couple began dissolving the marriage and executed a property settlement transferring 90 percent of community assets to Mrs. Wilson (and theoretically insulating the funds from any potential lawsuit). Clayton sued, and the entire marital community was found liable because the assaults occurred while Clayton was working for the community. The trial court also found fraud in the extremely lopsided division of marital property, and voided the transfer. The Court of Appeals agreed and the Supreme Court upheld the decision.

In re the Dependency of C.S., No. 81720-1. Justice Richard Sanders wrote the unanimous opinion holding that Amy Singleton’s parental rights had been improperly terminated. Singleton has a son diagnosed with ADHD and other behavioral problems. She has a history of drug and alcohol abuse and is under the supervision of social workers. She continues to have substance abuse issues, although evidence was introduced that she is improving. The state filed a third party custody action and the court terminated her parental rights. The Supreme Court reversed this order as the State had not offered Singleton required training that would allow her to rehabilitate.

Schnall, et al. v. AT&T Wireless Services, Inc., No. 80572-5. Should AT&T Wireless customers nationwide be allowed to pursue a class action under the WA Consumer Protection Act? Chief Justice Barbara Madsen, writing for a 5-4 majority, declined to make Washington “a locus of nationwide class action litigation.” The Court said the trial court was correct in declining to certify a nationwide class.

Drum v. State, No. 81498-8. Justice Debra Stephens, writing for a 5-4 majority, affirmed Patrick Drum’s conviction for burglary after he entered a house while high on spray paint. Drum entered a drug program and signed a Drug Court Contract, under which he agreed that the court would determine his guilt on the burglary charge if he was terminated from the program. As part of this contract, he waived various rights including the right to testify and the right to a jury trial. Drum left the drug program, and the court found him guilty of burglary. Drum appealed, claiming that there was insufficient evidence to convict him and that the contract did not fulfill due process requirements for a guilty plea. The Jefferson County Superior Court found that Drum had stipulated that the evidence was sufficient, and that the contract did not violate due process because it was not a guilty plea.

State v. Erickson, No. 81594-1. The Supreme Court unanimously upheld an assault conviction, with Justice Tom Chambers writing the opinion. Anthony Erickson was convicted of fourth degree assault and released on probation, but his probation officer claimed that he violated the terms of his probation agreement. Erickson was summoned to a probation hearing, failed to appear, and an arrest warrant was issued. Upon arrest he was found with drugs on him and convicted of possession. He appealed, claiming the arrest warrant was invalid because there was no probable cause that he had violated probation (only the officer’s word). The Court wrote: “We conclude that the warrant was valid because it was supported by a well-founded suspicion that Erickson had violated the terms of his release.”

State v. Fry, No. 81210-1. Justice James Johnson writes a 4-vote lead opinion, with four other justices agreeing in a separate opinion, that rejected a defendant’s claim that he was qualified to use marijuana for medicinal purposes in defense to a charge of unlawful possession of marijuana. Two police officers were informed of a marijuana growing operation at the residence of Jason and Tina Fry. The officers smelled marijuana when they approached. Fry did not consent to a search, and presented a document purporting to be authorization for medical marijuana. The officers obtained a warrant and seized over two pounds of marijuana. At trial, Fry argued to suppress the marijuana because of his medical marijuana authorization. The judge denied the motion. The Court of Appeals upheld the trial court’s decision to allow the evidence seized at the Frys’ home, and the Supreme Court affirmed.

State v. Kelly, No. 82111-9. Dustin Kelly approached a couple, threatened to kill them both, and then shot at them, killing the man. In addition to murder, he was convicted of second degree assault (intentional assault with a deadly weapon). The court imposed firearm sentence enhancements on both crimes. Kelly argues that since the use of the firearm is already an element of second degree assault, imposing the sentence enhancement on the assault essentially punishes him twice for using the firearm—a claimed violation of double jeopardy. The Supreme Court unanimously rejected this argument, with Chief Justice Madsen writing the opinion.

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State v. Rafay and Burns, No. 80865-1. Petitioner Glen Sebastian Burns was convicted of aggravated first-degree murder in 2004. He appealed and requested to represent himself. The Court of Appeals denied this request. Appealing to the Supreme Court, Burns argues that article I, section 22 of the Washington Constitution guarantees the right of self-representation on appeal. The Supreme Court, with Justice Debra Stephens writing the unanimous opinion, agreed.

Previous decisions have noted that article I, section 22 provides the right of self-representation at trial, but never before had the Court considered whether this right extended to appeals. The relevant portions of the section state:

In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases . . . . 

While there is no right to self-representation on appeal under the U.S. Constitution, the Court analyzed the text of the state constitution and noted that article I, section 22 provides greater protection than its federal counterpart. It guarantees the right to appeal -- the first state constitution to do so. The Court noted, however, that the right to self-representation is not absolute, and an appellate court has broad discretion to fashion an appropriate procedure for implementing this right.

The Court reversed the Court of Appeals and remanded Burns' case for further proceedings.

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State v. Winterstein, No. 80755-8 (briefs and argument). Terry Lee Winterstein was convicted of unlawful manufacture of methamphetamine after his probation officer conducted a warrantless search of his residence. After trial, Winterstein’s counsel discovered that Winterstein had reported a change of address with the Department of Corrections at least three weeks prior to the search, and the probation officer had searched Winterstein’s prior residence. Winterstein argued that the evidence gathered as a result of the warrantless search should be suppressed because his probation officer did not have the authority of law to search a house that was not Winterstein’s documented residence.

The trial court denied the motion and the Court of Appeals affirmed. The Court of Appeals also held that regardless of the illegal search, the evidence could be admissible under the “inevitable discovery doctrine”—that is, evidence that police would have ultimately or inevitably discovered through other (lawful) means.

The Supreme Court, Justice Debra Stephens writing, overturned Winterstein’s conviction and remanded the case for a new suppression hearing. The Court categorically rejected the inevitable discovery doctrine.

The Court first addressed whether the probation officer’s search of the Winterstein’s former residence was proper. It’s generally recognized that individuals under Department of Corrections supervision have a lesser expectation of privacy, and can be searched on the basis of a reasonable suspicion of a probation violation. But the Court said that probation officers must have probable cause—a higher standard—to believe that their probationers live at the residences they search. “In this context, probable cause exists when an officer has information that would lead a person of reasonable caution to believe that the probationer lives at the place to be searched. The information known to the officer must be reasonably trustworthy. Only facts and knowledge available to the officer at the time of the search should be considered.”

Turning to the inevitable discovery argument, the Court noted that it is well-established that article I, section 7 of the Washington Constitution provides greater protection of privacy rights than the Fourth Amendment of the U.S. Constitution. Section 7 says: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” While federal cases have allowed for inevitable discovery, and the state Court of Appeals has applied the doctrine, the Supreme Court said the doctrine is “speculative and does not disregard illegally obtained evidence”—and is therefore incompatible with the state constitution’s expansive protection of privacy. As Justice Stephens wrote, admitting evidence under the inevitable discovery doctrine would leave no incentive for the State to comply with the constitution's requirement that arrests precede searches.

Justice James Johnson, joined by Justices Owens and Fairhurst, concurred with the decision to remand the case, but objected to the majority’s analysis of the inevitable discovery issue. Johnson wrote that it wasn’t necessary to address the issue and that the Washington Constitution allows inevitable discovery in some limited circumstances.

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Justice Debra ("Gangsta") Stephens and Chief Justice Gerry ("Big Dawg") Alexander at the court's annual Halloween party.

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In re the Estate of Borghi, No. 80925-9. Jeanette Borghi purchased a parcel of property in 1966 subject to a real estate contract. Nine years later she was married and a few months after that, a special warranty deed was issued to her and her new husband in both their names. She died intestate (without a vawill) in 2005, leaving her husband, Robert, and her son from a previous marriage, Arthur Gilroy, as heirs.

If the land was Jeanette Borghi's separate property, Gilroy is entitled to a half-interest in it. If it was community property, it passes to the husband's estate (he followed his wife in death). The character of the property is the question before the Court. Four justices join a lead opinion by Justice Stephens, holding that the property was and remained Jeanette Borghi's separate property.

The lead opinion reiterates that the character of property is established at the time of acquisition. In this case, the property was acquired by Borghi in 1966. Thus it was brought into her second marriage as her separate property, with a presumption that it remained her separate property. That presumption can only be overcome by "clear and convincing evidence." The lead opinion holds that the inclusion of both names on the title was insufficient to change the character of the property and goes on to discuss what kind of evidence might meet that standard.

Justice Madsen writes a short concurrence, providing the tie-breaking fifth vote but narrowing the holding. She argues that the discussion of what sort of evidence in addition to the deed is necessary to achieve the "clear and convincing" standard is unnecessary since no such evidence was presented in this case.

Four justices dissent in an opinion by Justice Owens that argues for a stronger "community titling presumption." (Briefs and argument)

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In re Det. of Fair, No. 80498-2. David Tyler Fair was charged with molesting several young girls, plead guilty to one count of second degree child molestation, and was sentenced to 20 months in prison. The sentence was suspended as part of a Special Sex Offender Sentencing Alternative (SSOSA). Fair failed to meet the requirements of that sentence, committed a robbery, then fled the state. Eventually, after being imprisoned in New Mexico, Fair was returned to Washington to serve his original sentence and the robbery sentence. In a treatment program, he admitted numerous other sexual contacts with children between 2 and 12 years old. The State petitioned to have Fair committed as a sexually violent predator.

Fair challenged his commitment, arguing that the State was required to "plead and prove a recent overt act." The Court today holds that the Sexually Violent Predator Act (RCW 71.09) only requires the state to prove a recent act if the person is not incarcerated. The Court further holds that this interpretation of the Act does not violate Fair's right to due process, in part because "due process does not require that the absurd be done before the compelling state interest can be vindicated." Justice Jim Johnson wrote the lead opinion, joined by Justices Madsen and Owens. Justice Fairhurst, joined by Justice Charles Johnson, concurs, but offers a slightly different analysis.

Justice Sanders, joined by the Chief Justice, dissents, arguing that the statute plainly requires that a person must be in total and continuous confinement following the original sex offense. Because Fair was originally released and only later incarcerated, and because he was actually serving only the robbery sentence at the time of the commitment proceedings, the dissent would require the state to plead and prove a recent overt act. Justice Chambers joined the dissent, but only as to the result.

In re Pers. Restraint of Duncan, No. 81230-6. Bryan Duncan challenges his commitment as a sexually violent predator based on several evidentiary rulings of the trial court. Duncan was convicted of three counts of first degree child molestation in 1992 and 1993. The State moved to commit him in 1996 and he was finally committed in 2005 (the Court notes that the nine-year delay is troubling, but was mostly attributable to Duncan and was not raised as an issue). Duncan challenges the trial court's admission of evidence that he refused a psychological evaluation and its refusal to allow Duncan to present evidence about the treatment program at the Special Commitment Center and about his proposed roommate if he was released.

The Court today holds, in an opinion by Justice Chambers, that the trial court did not abuse its discretion in the evidentiary rulings. Justices Charles Johnson, Madsen, Owens, Fairhurst, and Jim Johnson and Justice Pro Tem. Philip Thompson joined the majority opinion.

Justice Sanders dissents, arguing that allowing the reference to Duncan's refusal to be reevaluated was "irrelevant and prejudicial." He would also find the refusal to allow Duncan's evidence about his proposed roommate after the state had introduce its evidence about the roommate to be reversible error. The Chief Justice, in a separate dissent, agrees with Sanders except that he would find the trial judge "impermissibly commented on the evidence by stating to the jury that Duncan 'did not wish' to be reevaluated."

State v. Patton, No. 80518-1. Randall Patton was wanted on a felony warrant when a Skamania County Sheriff Deputy spotted him. Patton was leaning into his own car through the window, rummaging with something on the seat. The Deputy told Patton he was under arrest and Patton fled, but was soon apprehended inside a trailer. Deputies searched the car and found methamphetamine. Patton challenged that the search violated his state and federal constitutional rights because it was not a valid search incident to arrest. The trial court suppressed the evidence but was reversed by the Court of Appeals. Today, the Supreme Court unanimously sides with Patton and the trial court.

The Court first disagrees with the trial court, which had found that Patton was not arrested until he was taken into custody in the trailer. He was arrested when the officer "manifest[ed] an intent to take [him] into custody" while Patton was standing by his car. Nevertheless, "the search incident to arrest exception is narrow and should be applied only in circumstances anchored to the justifications for its existence."

The question before us, then, is whether it would stretch the search incident to arrest exception beyond its justifications to apply it where the arrestee is not a driver or recent occupant of the vehicle, the basis for arrest is not related to the use of the vehicle, and the arrestee is physically detained and secured away from the vehicle before the search. We believe it would.

Justice Stephens wrote the majority opinion, joined by all other justices except for Justice Jim Johnson, who concurred but found the case identical to Arizona v. Gant, decided earlier this year by the United States Supreme Court.

Thompson v. Hanson, No. 81311-6. The Court resolves a dispute between the Courts of Appeals over Washington's Uniform Fraudulent Transfer Act (UFTA). Division Three had held that a creditor can only enforce their rights against a transferee who has received fraudulently conveyed property from a debtor if the transferee had "intent to hinder or delay [the] creditors." Today, the Court unanimously eschews that position and upholds a Division One ruling that no proof of intent is required by the UFTA. Justice Owens writes the main opinion and Justice Madsen concurs, but would not have reached one of the issues (the "offset" provision) addressed by Owens.

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In re Personal Restraint Petition of Pullman, No. 80834-1. (majority, concurrence)

Issue: Whether the Department of Corrections violated Pullman’s due process rights by raising the inmate’s risk classification level without providing advance notice and an opportunity to challenge the proposed reclassification.

Court ruled: Unanimously against Pullman, denying his petition. Decision was written by Justice Madsen, joined by seven other justices. Justice Sanders wrote a concurrence.

Court's reasoning: Department of Correction's decision to raise Pullman's risk classification, thus denying him the possibility of a 50% reduction in his prison sentence, was not a violation of due process. The statute allowing the reduction does not create a right ("liberty interest") which must be protected by due process. Prisoners cannot count on receiving the reduction. Pullman could only expect that DOC would follow its establish procedure in reviewing his eligibility for the reduction, including an opportunity for him to appeal the decision, which the Department did.

In his concurrence, Justice Sanders writes that the statute does create a liberty interest, but that the resulting due process rights are minimal and were satisfied by DOC's appeal procedure. 

State v. Iniguez, No. 81750-2. (majority, dissent)

Issue: Whether an eight-month delay in the defendant's trial violated his constitutional right to a speedy trial. Iniguez was convicted of robbery, but only after his trial was delayed multiple times due to scheduling conflicts, a mistrial and the combining of Iniguez' trial with that of his partner in the robbery. 

Court ruled: Five to four against Iniguez, holding there was no constitutional violation of his right to a speedy trial. Justice Stephens wrote the majority opinion, joined by four Justices. Justice Chambers wrote the dissent, joined by three Justices.

Court's reasoning: The Court dealt first with the question of whether the speedy trial rights in Article I, Section 22 of the state constitution offer greater protections than the Sixth Amendment to the U.S. Constitution. Using the six-part Gunwall test, Justice Stephens determined that there was no clear reason to find greater protections in the state constitution, so the two provisions should be applied similarly.

While rejecting the use of a strict time period analysis to determine if a defendant's rights are presumed to have been harmed (e.g. if delay of more than 8 months), Justice Stephens found the circumstances of the delay substantial enough to presume harm to Iniguez. But upon reviewing the reasons for the delay and whether it actually harmed Iniguez, Stephens determined that the level of violation of Iniguez' speedy trial rights wasn't enough to justify dismissing his case.

In his dissent, Justice Chambers writes that the Gunwall analysis should be left for another day because it was not fully briefed or argued by the parties (only mentioned in one page of one brief). On the merits, Chambers disagrees with the weighting of the facts of the case, finding that the State hadn't justified the delay and the case should be dismissed.

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McAllister v. Bellevue Firemen’s Pension Board, No. 81187-3.  David and Ken McAllister were firefighters for the City of Bellevue. Both made pension contributions for many years under the Firefighters’ Relief and Pensions Act of 1955. When the men retired, the 1955 Act had been replaced by the Law Enforcement Officers’ and Fire Fighters’ System Pension Plan of 1970. Under the more recent 1970 plan, the city is required to pay the McAllisters the difference, if any, between their benefits under LEOFF and what their benefits would have been had they retired under the 1955 Act. The City later determined it had made an excess payment to the McAllisters of approximately $500,000 by relying on definitions contained in LEOFF, rather than the 1955 Act. Upon discovering this, the City began paying a reduced excess payment, but did not seek a reimbursement. The McAllisters challenged the reduced payment. The Supreme Court unanimously upheld the City’s action, with Justice Debra Stephens writing the opinion. “The plain language of RCW 41.26.040(2) further requires that an excess payment be calculated under the prior retirement system, not under LEOFF,” she wrote. (briefs and argument).

State v. Engel, No. 81072-9. Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute. The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top. The rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.

The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law. Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.” (briefs and argument).

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Estate of Haselwood v. Bremerton Ice Arena, Inc, No. 80411-7. In 2002, the City entered into a concession agreement with Bremerton Ice Arena (BIA) to build and operate an ice arena on public land. The Haselwoods loaned $3,775,000 to BIA for the project, and BIA gave the Haselwoods a promissory note and a deed of trust. The project failed shortly after it began, and the excavation contractor, "RV" recorded a mechanics lien against BIA and the proposed facility in July 2003. A month later, BIA defaulted on the Haselwood loan and the Haselwoods brought a foreclosure action against BIA and its other creditors. The trial court granted partial summary judgment for RV, finding that the mechanics lien had attached only "to certain improvements to the facility," but not to the land or BIA itself. It eventually found that the Haselwood's deed of trust was superior to the claims of all of the other creditors.

The Court of Appeals affirmed in part, but found that the mechanic's lien related back to RV's first delivery of equipment and was superior to the Haselwoods' deed of trust. It also reversed an award of attorney fees to the Haselwoods. In an opinion by Justice Sanders and signed by four other Justices, the Court today upholds the Court of Appeals. Justices Stephens and Madsen concur, but would not foreclose RV's request for attorney fees. Chief Justice Alexander, joined by Justice Charles Johnson, dissents and would find RV's lien inferior to the Haselwoods' deed of trust. (briefs and argument)

 Torgerson v. One Lincoln Tower, LLC, No. 80623-3. The Court of Appeals is affirmed in a unanimous opinion by Justice Sanders. Three real estate agents, Michael Miller, Vicki Ringer, and Joanne Faye Torgerson, were seller's agents for condominiums in One Lincoln Tower, then under construction. Each also contracted to purchase a unit, and their contracts included a provision limiting their remedies for sellers' breach. After some delays in the project and a change of ownership, the seller did breach and the agents sued, asking the court to strike down the remedy-limiting provision. The trial court entered summary judgment for the seller, which was affirmed by the Court of Appeals and is affirmed here as well, with attorneys fees also awarded to the seller. (briefs and argument)

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Cambridge Townhomes v. Pacific Star Roofing, No. 81003-6. Polygon Northwest Company, the general contractor for a condominium development, settled allegations of construction defects with the homeowners association and then sued various subcontractors for breach of contract and indemnification. One of these subcontractors, P.J. Interprise, had been owned by Gerald Utley and disolved in chapter 7 bankruptcy. Polygon had listed only P.J. Interprise and not Utley in its original complaint and the trial court refused to allow Polygon to amend the complaint and pursue a claim against Utley. In a unanimous opinion written by Justice Stephens, the Court upholds a decision of the Court of Appeals that had reversed the trial court's summary judgment in favor of defendants. (Briefs and argument)

Campbell v. Ticor Title Insurance Co., No. 80999-2. A parcel of land was subdivided into three, with a pedestrian easement across lot B. The easement allows owners of lot C to access a dock on Deer Lake. Lot C was sold and the new owner subsequently discovered that a home on lot B blocked the easement. The owner filed various suits, including one to force a new easement on lot A. The Campbells, owners of lot A, claim that their title insurance company, Ticor Title, has a duty to defend them in the suit. Here the Court, in another unanimous opinion by Justice Stephens, upholds the trial and appeals courts, holding that "[Ticor's] policy plainly excludes easements not disclosed by th epublic record or arising after the date the policy issues. Accordingly, there is no conceivable coverage of the Campbells's claims and Ticor owes no duty to defend." (Briefs and argument)

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There is a good piece in Law & Politics Magazine profiling Washington's newest justice. Her career is well-document in her court biography, but the L&P article includes some previously unpublished tidbits. She almost drowned in the Snake River at the age of 8, she nearly pursued a Ph.D. in philosophy, and she plays golf. (There's a picture of Justice Stephens using a 3 or 5 wood on the fairway, which I've always found difficult.)

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In Powell the Court focused on whether the trial court's admission of evidence of drug use by the defendant, without parallel testimony explaining the effect of the drug, was an error requiring reversal. Writing for a plurality, Justice Mary Fairhurst determined that because the defendant's attorney failed to raise this issue at the trial court and because there was no "manifest constitutional error," the trial court's guilty verdict should be upheld.

Jason Powell was convicted of attempted burglary in the first degree for trying to break into his girlfriend's home while carrying a loaded gun. The prosecution called Powell's roommate to testify that he had seen Powell take methamphetamine right before he went to his girlfriend's house. Testimony about past crimes or bad acts are generally inadmissible to directly prove that a person was likely to commit the crime in question, as they are highly likely to prejudice a jury against the defendant. But they can be used to show things like a person's state of mind or intent. In this case, the State was attempting to show Powell's state of mind at the time he went to his girlfriend's house. The Court found that Powell's attorney objected to the credibility of the witness, but didn't preserve on the record a concern about its prejudicial effect.

The Court of Appeals reversed the conviction, saying the State should have provided expert testimony to explain the likely effects of meth, but the Supreme Court disagreed because the need for such a procedure was not raised at the trial court. As it was an "uncontested issue." Fairhurst wrote that the Court therefore could not review it unless they determined it constituted a manifest error of constitutional magnitude. It did not, as there was no evidence showing the roommate's testimony had practical and identifiable consequences on the outcome of the trial.

Justice Stephens wrote a concurring opinion in which she agreed that the error was harmless, but disagreed that the objection had not been preserved at trial court. Justices Alexander and Chambers signed her concurrence.

Justice Sanders dissented, joined by Justice Charles Johnson. He argued that the objection to the prejudicial nature of the testimony was preserved at the trial court, and that the testimony should not have been allowed because it was prejudicial, misleading, and of no value to the jury.

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In re the Personal Restraint Petition of Bradley, No. 81045-1. In 2002, Anthony Bradley was twice arrested for possession of cocaine with the intent to deliver. One charge was reduced to simple possession and Bradley pleaded guilty to both. He later discovered that his offender score on the lesser charge had been miscalculated, suggesting a longer standard sentence for that charge. The question here is whether his pleas were "part of an indivisible 'packaged deal,'" allowing Bradley to withdraw both. The Court holds that the pleas are indivisible and grants the petition with a majority opinion by Justice Stephens, joined by Justices Chambers, Fairhurst, C. Johnson, and Madsen. Justice Owens, joined by Justice Sanders, concurs but suggests the Court should have ordered "additional fact finding on remand...." Chief Justice Alexander, with Justice J. Johnson, dissent. (Case briefs and argument)

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State v. Sutherby, No. 80169-0 (case briefs and arguments). The Supreme Court threw out a child rape conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter ("L.K.") stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Randy Sutherby was arrested and charged with first degree rape of a child and first degree child molestation. A subsequent search of his personal computer found child pornography, and he was charged with “10 counts of possession of depictions of minors engaged in sexually explicit conduct.” He was convicted by a jury on all counts and appealed.

The Court here considers two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?” Justice Stephens, joined by five other justices, reversed the multiple charges of possession, and reversed the rape and molestation convictions and ordered a retrial.

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.” The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition. The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

Justices Fairhurst and Madsen agreed with the majority on the child pornography issue, but dissented on the severance issue. Justice James Johnson dissented on all issues, arguing that Sutherby received a fair trial and was properly convicted. Johnson opened and closed his opinion with, “Poor little L.K.”

UPDATE: The Seattle PI took note of Justice Johnson's emotional dissent here.

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In re Marriage of Bernard, No. 80348-0 (case briefs and argument). How good is your prenup? Just don’t sign it at the last minute. Today by a 6-3 vote, with Justice Stephens writing the majority, the court invalidated a prenuptial agreement after finding it both substantively and procedurally unfair.

Thomas Bernard hired Gloria as an operations manager for his company. Three years later, the two began dating. Thomas proposed to Gloria but said he would require a prenuptial agreement – he was 55 and worth $25 million; she was 49 and had a net worth of $8,000. In January 2000 Thomas and his attorney began working on the prenup, but did not provide Gloria with a copy. Despite several suggestions to Gloria that she obtain independent counsel, she never hired a lawyer. Then 18 days before the wedding, Gloria received a draft of the prenup. A few weeks later Gloria met with an attorney, but the two received a new draft of the agreement that was substantially different than the previous version. The day before the wedding, Gloria’s lawyer identified major concerns with the agreement, and outlined these concerns in a letter. Concerned that Thomas would call off the wedding, Gloria signed the prenup, and the two signed a “side letter” agreeing to renegotiate the areas addressed by Gloria’s lawyer. This amendment was finalized a year after the wedding. In 2005, Gloria filed for divorce, and challenged the enforceability of the prenuptial agreement.

The Supreme Court used the long-standing two part analysis. First, the court determined that the agreement was substantively fair—that is, where the agreement makes fair and reasonable provision for the spouse not seeking enforcement. The court determined that the amended prenup made inadequate provisions for Gloria relative to Thomas’ means. Second, the court reviewed the procedural fairness of the agreement—whether the spouses fully disclosed the value of their property and whether the agreement was entered into voluntarily. The court took note fo several factors: that Gloria never saw a draft until days before the wedding; and changes to the draft agreement at the last minute; and the pressure Gloria felt to sign an agreement in order to avoid the embarrassment of delaying the wedding. The court determined that the “side letter” amendment did not cure the defects of the prenup, and invalidated it.

Justices Sanders, Fairhurst, and J. Johnson dissented, saying that while the prenuptial may have been substantively unfair, Gloria entered the agreement voluntarily and intelligently.

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The  Legacy Project recently honored former Washington State Supreme Court Justice Carolyn Dimmick for her role as the first woman to serve on the state Supreme Court. Carolyn Dimmick has served as a judge since 1965. The state’s first female governor, Dixy Lee Ray, elevated Dimmick to the Supreme Court in 1981. In 1985, President Ronald Reagan appointed Dimmick to the U.S. District Court in Seattle, where she serves on senior status at the age of 79.

The Legacy Project publishes oral histories and biographies of individuals instrumental in shaping Washington state history.

In a separate ceremony on March 27,  a plaque was unveiled in Olympia to mark the 100th anniversary of the state Legislature's decision to give women the right to vote. A vote by an all-male electorate in 2010 ratified the Legislature's authorization. Justice Debra Stephens, the newest member of the Supreme Court, spoke at the event. "The fight for women's suffrage is a reminder that all things worth fighting for take hard work, passion and time," she said.

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The Supreme Court has issued a ruling in WA State Major League Baseball Stadium Public Facilities District v. Huber, Hunt & Nichols-Kiewit Construction, No. 81029-0. The Public Facilities District initiated the action to recover damages for SAFECO Field construction defects. The construction company ("HK") claimed the action was barred by the 6-year statute of limitations, and the trial court awarded summary judgment in the company's favor.

The Supreme Court reversed the trial court's order and remanded the case for further proceedings. Justice Debra Stephens, writing the 6-3 majority decision, said that construction of Safeco Field by the PFD involves the exercise of sovereign power, and claims based on its construction fall within the "for the benefit of the state" exemption to the statute of limitations. Justice Richard Sanders dissented, protesting that "[c]onstruction of a professional baseball stadium for private profit is certainly not 'for the benefit of the state' as that phrase is understood in our case law." Justices Tom Chambers and James Johnson joined Sanders' dissent.

UPDATE: The Washington Construction Law Blog, published by Davis Wright Tremaine, has more information about the case here.

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